Managing Air Quality in Indian Country Rich McAllister US EPA Region 10

1 Overview Getting Started Tribal inherent authority “Treatment in the same manner as a State” or “TAS” Federal Implementation Delegation

2 Getting Started with Funding to Assess Indian General Assistance Program Sec. 103 of the CAA Assess air quality Inventory emissions and identify problems

3 The Inherent Authority of Tribes Indian tribes were independent, self- governing societies long before contact with European nations The U.S. recognizes tribes as “distinct, independent political communities” qualified to exercise powers of self- government by reason of their original tribal sovereignty

4 Reserved Rights Doctrine “In sum, Indian tribes still possess those aspects of sovereignty not withdrawn by treaty or statute, or by implication as a necessary result of their dependent status.” U.S. v. Wheeler (1978)

5 The Jurisdiction of Tribes Authority to protect tribal self- government and to control internal relations Subject to plenary power of Congress (may be unilateral) Authority over nonmembers as granted or delegated by Congress Inherent authority to regulate nonmember conduct is limited

6 Enforcement of Tribal Requirements Key issue: Does the Tribe wish to establish civil requirements under Tribal law enforced against both members and nonmembers in Tribal Court? Requires both Tribal Regulatory and Tribal Adjudicatory jurisdiction

7 Montana v. United States 450 U.S. 544 (1981) In general, absent express authorization by federal statute or treaty, a Tribe’s inherent power over nonmember activity on fee lands within a reservation does not reach beyond what is necessary to protect tribal self-government or to control internal relations

8 The Montana Test Exceptions ( 1) Consensual relationships, or (2) The conduct of non-Indians on fee lands within the reservation when that conduct “threatens or has some direct effect on the political integrity, the economic security, or the health or welfare of the tribe.”

9 Evolving Caselaw Nevada v. Hicks 121 S. Ct 2304 (2001). A tribal court lacks jurisdiction to adjudicate a tribal member’s civil claims against a state game warden who was executing a search warrant on tribal reservation lands for alleged off- reservation crimes

10 Nevada v. Hicks “The ownership status of land... is only one factor to consider in determining whether regulation of the activities of nonmembers is ‘necessary to protect tribal self-government or to control internal relations.’... But the existence of tribal ownership is not alone enough to support regulatory jurisdiction over nonmembers.”

11 Plains Commerce Bank 128 S.Ct (2008) Montana does not permit Indian tribes to regulate the sale of non-Indian fee land Montana and its progeny permit tribal regulation of nonmember conduct inside reservation that “implicates the tribe’s sovereign interests” “Tribe’s ‘traditional and undisputed power to exclude persons from tribal land, gives it the power to set conditions on entry to that land.. via licensing requirements and hunting regulations”

12 Compliance with Tribal or State Law does not relieve compliance with Federal requirements unless explicitly approved by EPA under Federal law

13 What is TAS? Congress gave EPA authority to treat tribes in same manner as statute authorizes states Clean Water Act (CWA), Safe Drinking Water Act (SDWA), Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), and 1990 Clean Air Act Amendments (CAA)

14 How is a tribe eligible for TAS? Federally recognized Governing body carrying out substantial duties and powers Jurisdiction or authority over area or activities to be regulated Capable of carrying out activities necessary to administer program

15 CAA Delegation of Authority EPA interpreted CAA as statutory grant by Congress of jurisdictional authority to Tribes over Indian and non-Indian sources within reservation boundaries For areas outside boundaries of reservation, application must demonstrate tribe’s inherent authority

16 How to Show Authority for TAS For applications covering areas within a reservation, the Tribe must identify, with clarity and precision, the exterior boundaries of reservation [see Sec. 110(o)] “Reservation” includes lands held in trust for a tribe (tribal trust) and pueblos

17 Tribal Implementation Plans A tribe with TAS may develop air programs under Tribal law, subject to approval by EPA Tribes are not bound by CAA deadlines for submittal of implementation plans Tribes may operate CAA programs using a modular approach, or may chose to not undertake air quality work under the CAA No need for full criminal authority

18 Approved Tribal Implementation Plans Saint Regis Mohawk Tribe of New York, Dec. 10, 2007 Mohegan Tribe of Connecticut, Nov. 14, 2007

19 TAS Considerations EPA will offer state opportunity to comment on reservation boundaries & publish newspaper notices of comment opportunity Once a TIP is approved by EPA, tribe’s rules are federally enforceable Compliance with EPA-approved TIP means compliance with CAA

20 EPA’s Direct Implementation Authority under the CAA in Indian Country TAR preamble states EPA will protect air quality throughout Indian Country by directly implementing the CAA's requirements under authority of sec. 301(d)(4) where tribes have chosen not to develop or are not implementing a CAA program

21 Federal Implementation Plans CAA gives EPA discretionary authority to promulgate Federal Implementation Plan (FIP) provisions as “necessary or appropriate” to protect air quality within specific areas of Indian Country 40 CFR § 49.11(a)

22 FIPs that Have Been Issued Prevention of Significant Deterioration rules for Indian Reservations, 40 CFR (1978) Tri-Cities landfill, Salt River Pima-Maricopa Indian Community, 40 CFR (1999) Astaris-Idaho LLC Facility (formerly FMC Corporation) in Fort Hall PM 10 Nonattainment Area, 40 CFR (2000) Federal Air Rules for Reservations (FARR) in EPA Reg. 10, 40 CFR Part 49, subpart C and M (2005)

23 40 CFR Part 71 Title V Regulations for Major Stationary Sources of Air Pollution Title V permits only contain “applicable requirements”, as defined in 40 CFR §71.2. In absence of such requirements, EPA issues “hollow” permits Requirements of TIPs and FIPs must be included in Title V air operating permits issued to major stationary sources located where the TIP and FIP apply

24 Proposed Preconstruction New Source Review Rules Nonattainment Area Major NSR permits Sources with PTE at least 100 tons/year (lower for some pollutants) Requires Lowest Achievable Emission Rate technology (LAER) Emission offsets Minor NSR Sources above thresholds Synthetic minor sources

25 EPA Program Delegation Delegates authority to tribe to help EPA administer a specific federal air rule EPA retains responsibility for enforcement Delegation allows tribe to gain experience by assisting with implementation of federal rules while deciding whether to establish tribal air program under CAA or tribal law

26 Delegation of the Part 71 Program to the Navajo Nation 14 Title V sources on Navajo Nation Permit fees must be sufficient to cover “permit program costs” Navajo Nation sought delegation of EPA’s Part 71 program before applying for TAS and Part 70 operating permits program Fees are paid to Navajo because Part 71 programs fully delegated

27 FARR Delegation Delegation provision in FARR (§ ) allows Tribes to establish agreement to administer one or more federal rules in effect on reservation EPA notifies “appropriate governmental entities” and local governments on the Reservation Delegation Agreements with Nez Perce Tribe and Confederated Umatilla Tribes for open burning permit programs; Quinault Tribe and Coeur d’Alene Tribe for general open burning, including calling “burn bans”

28 Direct Implementation Tribal Cooperative Agreements During FY2001, EPA first authorized to award Direct Implementation Tribal Cooperative Agreements (DITCA) to Indian tribes and eligible intertribal consortia Tribe assists EPA in implementing federal environmental programs for Indian tribes in absence of acceptable tribal program

29 Reasons for DITCAs Some tribes find TAS process cumbersome, risky EPA cannot use grant or cooperative agreement mechanisms for funding tribe to help EPA directly implement federal program DITCA provides tribes with opportunities to Develop capacity Address specific tribal environmental priorities within EPA direct implementation authority Determine scope and pace of tribal involvement

30 INSPECTOR CREDENTIALS Sec. 114(a)(2) of the CAA provides “the Administrator or his authorized representative, upon presentation of his credentials, shall have a right of entry to, upon, or through any premises... and may at reasonable times have access to and copy any records, inspect any monitoring equipment... and sample any emissions which such person is required to sample.”

31 CONDUCTING INSPECTIONS AS AUTHORIZED EPA REP Ensures better coverage by trained inspectors and better enforcement by EPA Allows quicker response to emergencies, especially in remote areas Provides increased environmental protection Authorizes direct participation of tribe’s staff Requires EPA to determine that issuing Inspector credential is appropriate

32 Contact Information Rich McAllister Office of Regional Counsel US EPA Region